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In order for the tort of defamation to exist, it requires a defamatory statement of and concerning the plaintiff that is published to third persons, is false, and causes damage to the plaintiff’s reputation. The elements involving this tort can be broken down in the following manner:

  1. What is a defamatory statementimage: A statement that tends to lower the plaintiff’s reputation with at least a substantial minority of the community.

  2. Of and concerning the plaintiff: Must prove that the defamatory statement referred to the plaintiff.

  3. Publication to third persons: The plaintiff must show that the statement was published to a third person and who understands the statement to be defamatory. Publications can be intentional or negligent.

  4. Falsity: The statement in fact must be false.

  5. Damages: The statement must be damaging to one’s reputation. Here, the damages depend on whether the defamation is libel (written defamatory statement) or slander (spoken defamatory statement).

    1. Slander: Must prove special damages; general damages are not presumed. The general rule is that defamation in the form of slander is not actionable without a showing of special damages. Special damages are identifiable losses actually suffered by the plaintiff such as loss of employment and medical expenses.

    2. Slander Per Se: General damages are presumed—loss of reputation is presumed. The plaintiff need not show special damages. If the slander falls within one of the four following categories, plaintiff has a cause of action for slander per se.

      1. Lack of chastity of a woman

      2. Present loathsome disease

      3. Accusation of crime involving moral turpitude

      4. Statements affecting the plaintiff in his or her trade or business (statement must relate to some characteristic that has special significance to plaintiff’s profession)

    3. Libel: General damages are presumed from the fact that the statement was published. The plaintiff need not show special damages to recover.

A liable defendant in a defamation case is anyone taking part in the publication, including the originator, republicator (person involved in repeating the defamatory remark started by the originator), and the disseminator (anyone who circulates the physical embodiment of the defamation and who may be acting unreasonably).

There are a number of defenses that can be employed by the defendant to counter a defamation claim:

  1. Consent. Proving that the plaintiff agreed to the release of the alleged defamatory statement.

  2. Truth of the statement being made.

  3. Status of the person who is the subject of the defamatory statement.

    1. Non-public figures: The statement made was a fair comment, or honest opinion (the publication was for a non-vindictive purpose). Where the defamatory statement is regarding a non-public person, there is less concern for freedom of speech and press. Further, private individuals are more vulnerable to injury from defamation because they do not have an opportunity for public access for rebuttal.

    2. Public figures: Applies a constitutional privilege. A defamatory statement made by the news media is privileged unless ...

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